"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, May 27, 2021

History of International Investment Law: Lecture Series on Introduction to International Law

In the past three months, we have been uploading a lecture every fortnight on the broad purpose of providing an introductory overview to international investment law. The purpose of these lectures is to make the subject more accessible. The lectures uploaded so far can be accessed from here. The first five lectures provide a brief historical overview of the subject. The transcript of the first lecture on the origins of international investment law before 1870 are dealt with in this post.

Lecture 1: Origins of International Investment Law before 1870

Lecture Link: https://youtu.be/_x57zCsHOxU

Hello and welcome to the video lectures on the Introduction to International Investment Law.

In this lecture series, we would be covering about 10-12 broad topics on the subject, and these would include important and controversial topics such as expropriation, Fair and Equal Treatment and Most Favoured Nation principles, as well as the latest developments, both in international investment law and international investor-state arbitration.

This lecture series can be taken up by students and others who are interested in getting an introductory overview of the subject.

Moving on to the first chapter of this series, “Nature & Evolution of International Investment Law”, we can see that historically International Investment Law has evolved in three distinct phases in the modern history:

Phase I is the period from 1870 to 1914; Phase II is the inter-war period, between 1918 to1945, and phase III is the post-war period, beginning from 1945.

But, even before the first phase, certain developments in international politics have had influence in the evolution of IIL.

For example, in 1778, USA and France concluded the first commercial treaty, known as the Treaty of Alliance; in fact there were many treaties and they are collectively called Treaties of Alliance. The treaty importantly provided for commercial relationship between both countries.

Then followed the various Friendship, Commerce and Navigation Treaties entered into between countries, especially between US and others. Take the example of the United States–Paraguay Treaty of Friendship, Commerce and Navigation of 1859.

These treaties protected individual and other rights such as:
  • Protection of individuals and their property,
  • freedom of movement and worship,
  • assuring rights to trade and to engage in commercial enterprise,
  • granting national treatment and most-favoured-nation status,
  • allowing for access to ports, and
  • granting navigation rights through territorial waters

One would note that even the recent most treaties guarantee these rights.

There were also Unequal or capitulation treaties. These conferred one-sided rights on the dominant conquering colonizer. These were the products of actual or threatened use of force by the dominant powers, especially those from the West. Although these treaties were couched in neutral language, they were actually meant to protect the rights, property and investment of the colonizer.

Examples of such treaties include treaties between Western powers and China between 1840s to 1860s.

In fact, it has been argued that the imposition of such unequal treaties was a key legal strategy in the European colonization. Key features of these treaties included:
  • Travel prerogatives of foreign traders,
  • the securing of extensive trading and investment rights,
  • non-discriminatory commercial access to the host state,
  • grant of concessions to foreign companies,
  • the protection of Christian missionaries,
  • leasing or ceding of territory to foreign states, and
  • governance powers, including establishment of parallel systems of governance.
Thus, the origins of the IIL themselves have been tainted by colonialism and the superstructure of IIL was built with colonialism and power dynamics between nations as the base.

Another important aspect is the evolution of the law on diplomatic protection to alien property in the 19th and the early 20th centuries.

A new branch of international law began to emerge in the 19th century known as diplomatic protection of aliens. This concerned establishment of an internationally acceptable minimum standard for the treatment of foreign persons and foreign companies, protection of person and property, etc. Violation of these standards meant that the host state was responsible and this meant military or other intervention by the state to which that alien belonged.

For more information on this, readers can refer to the first chapter of the book by Kate Miles titled “The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital” and published by the CUP in the year 2013.

Friday, May 7, 2021

Symposium Alert: XIV Annual NLSIR-Samvād Partners Symposium on Strategising a Healthcare Framework for India: Headways, Dilemmas, and the Way Forward

 [Announcement of NLSIR Symposium as received from NLSIR is posted below]


The National Law School of India Review (NLSIR) is the flagship journal of the National Law School of India University, Bangalore (NLSIU). For over 30 years now, NLSIR has constantly sought to encourage legal scholarship on issues of relevance to legal practitioners. In 2009, we became the first Indian student-run journal to be cited by the Supreme Court of India in its decision in Action Committee, Unaided Private Schools v. Director of Education. Notably, we have also been cited recently in the Supreme Court’s landmark judgment, Justice K.S. Puttaswamy v. Union of India, which established the Right to Privacy in India.

About the Symposium

In furtherance of our mandate to encourage legal scholarship and push the boundaries of law and policy, we are organising the XIV Annual NLSIR-Samvād Partners Symposium on Strategising a Healthcare Framework for India: Headways, Dilemmas, and the Way Forward. The Symposium will be held virtually on May 9, 2021 and is completely free to attend. The Symposium is divided into three sessions, the outlines of which are available in the attached Concept Note. Each panel will be followed by a Q&A session, where attendees will have the opportunity to interact with the panellists.

 This year, Justice Ravindra Bhat, Supreme Court of India, will be delivering the Inaugural Address and Dr. Soumya Swaminathan, Chief Scientist, WHO, will be delivering the Introductory Address to the Symposium.



Session I is titled 'Assessing India's Clinical Trial Rules: Developments and Some Festering Concerns for the Healthcare System'. In this session, we seek to engage in a discussion on India's clinical trial regime and its particular complications with regard to scientific and traditional medicines. 


Keynote Speaker: Mr. Murali Neelakantan - Principal Lawyer, Amicus and former Global General Counsel, Cipla Limited

The panellists for Session I are:

1.     Mr. Milind Antani - Lead, Pharma, Life Science, and Healthcare Practice, Nishith Desai Associates

2.     Prof. Padmavati Manchikanti - Professor, Rajiv Gandhi School of Intellectual Property, IIT Kharagpur

3.     Mr. Dinesh Thakur - Public Health Activist and Expert in Pharmaceutical, Biomedical Product Development, and Drug Regulation

4.     Ms. Nivedita Saksena - Digital Health Policy Fellow, India Digital Health Network

Session II, titled 'The Ecosystem of Healthcare: Patent and Trade', will consider two competing interests - incentives for research and development on the one hand, and accessibility of vital drugs on the other hand - and their implications amidst the Covid-19 crisis. 

 Keynote Speaker: Justice Prabha Sridevan - Retired Judge, Madras High Court and Chairperson of the Intellectual Property Appellate Tribunal from 2011 to 2013

The panellists for Session II are:

1.     Prof. Jayashree Watal - Adjunct Professor of Law, Georgetown University and Counsellor, Intellectual Property Division of the WTO from 2001 to 2019

2.     Mr. Rohan K George - Partner, Samvād: Partners

3.     Prof. Padmashree Gehl-Sampath - Fellow and Senior Advisor of the Global Access in Action Program at the Berkman Klein Center, Harvard University

4.     Mr. Prashant Reddy - Lawyer and Expert on Intellectual Property Law and Drug Regulations

5.     Ms. Neha Srivastava - Partner Designate, Remfry & Sagar

Session III is titled 'The Law and Model Framework to Provide Universal Right to Health and Healthcare Infrastructure'. In this session, we will explore the existing public healthcare system in India, its varied actors and stakeholders, and endeavour to conceptualise a universal right to healthcare in India. 

 Keynote Speaker: Mr. Anand Grover - Senior Advocate, Supreme Court of India

The panellists for this session are:

1.     Prof. S.V. Joga Rao - Visiting Professor, NLSIU and Healthcare Consultant at Legalexcel

2.     Ms. Arkaja Singh - Fellow, Centre for Policy Research

3.     Mr. Akshat Agarwal - Senior Resident Fellow, Vidhi Centre for Legal Policy

4.     Mr. Varun Jhaveri - Officer on Special Duty at the National Health Authority, Government of India


Please use the following link to register for the Symposium: https://docs.google.com/forms/d/e/1FAIpQLSdsouhY1bifv355PKzNzNGkqmKyoTiVAmAs-379bcJC7yrEEg/viewform. Since slots are limited, we urge you to register as soon as possible. We hope to see you at the Symposium and would love to have you engage with the discussions on this pertinent theme.

Please feel free to contact the undersigned in case you have any queries. You can also mail us at nlsir@nls.ac.in.


Viraj Ananth (+91 81979 98480) and Kashish Makkar (+91 96369 41027),

Editors-in-Chief, National Law School of India Review '20-'21